The U.S. Tenth Circuit Court of Appeals is located the Byron White Courthouse (Washington Blade photo by Chris Johnson).

The ban on same-sex marriage in Oklahoma violates the constitutional rights of same-sex couples living in the state, a federal appeals court ruled Friday.

In a 2-1 decision, a three-judge panel on the U.S. Tenth Circuit Court of Appeals ruled in the case of Bishop v. Smith that Oklahoma’s ban on same-sex marriage is unconstitutional on the basis of a similar decision the court reached against Utah’s marriage ban.

Writing for the majority in a 46-page decision, U.S. Circuit Judge Carlos Lucero, a Clinton appointee, said the court’s ruling in the Oklahoma case “is governed by our ruling” in the Utah lawsuit, Kitchen v. Herbert.

“Facts and arguments presented in this case differ in some respects from those in Kitchen,” Lucero writes. “But our core holdings are not affected by those differences. State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry, and arguments based on the procreative capacity of some opposite-sex couples do not meet the narrow tailoring prong.”

The three-judge panel consisted of Lucero; Jerome Holmes, an appointee of President George W. Bush who wrote a concurring opinion; and Judge Paul Kelly Jr. an appointee of President George H.W. Bush, who wrote the dissent. It’s the same panel that affirmed Utah’s ban on same-sex marriage is unconstitutional.

A stay pending appeal was included as part of the decision, so no same-sex weddings will take place in Oklahoma at this time. The decision is the latest in an unbroken string of more than 20 victories in the courts in favor of marriage equality following the U.S. Supreme Court’s decision last year against the Defense of Marriage Act.

The lawsuit was filed in November 2004 by two couples – Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton – against Tulsa Court Clerk Sally Howe Smith for enforcing the marriage amendment to the Oklahoma Constitution approved by voters in 2004. The Bishop couple is seeking to marry in Oklahoma; the Phillips couple is seeking recognition of their same-sex marriage performed in Canada and California.

The case — the oldest active marriage lawsuit in the country — has taken a long time to proceed because of standing issues. The 10th Circuit had previously remanded the litigation to lower courts.

In the likely event that state officials choose to appeal, they can seek an en banc re-hearing before the full Tenth Circuit or appeal directly to the U.S. Supreme Court.

Byron Babione, a senior counsel with conservative Alliance Defending Freedom, is defending the law on behalf of the Tulsa Court and said the next step is under review.

“We are consulting with our client and considering her options,” Babione said. “Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with what it held in its Windsor decision, the states will ultimately be free to preserve man-woman marriage should they choose to do so.”

Standing issues had persisted in the case even in the present. One was whether plaintiffs had standing because they didn’t litigate against both Oklahoma’s statute and constitutional amendment banning same-sex marriage. The other was related to the court clerk because that official has nothing do with the recognition of marriage.

But Lucero writes a constitutional amendment “takes the place” of all laws in Oklahoma. The judge also addresses the issue with regard to naming the clerk as a defendant.

“If Smith were to deny the Bishop couple a marriage license because they are both women, she would simultaneously be enforcing both Okla. Stat. tit. 43, § 3(a) and Part A of SQ 711,” Lucero writes. “There is no scenario in which Smith could enforce the statute but not enforce the amendment.”

Holmes writes a concurring opinion that agrees Lucero’s reasoning, but goes into more detail for why it was appropriate for the court not to invoke the “amicus doctrine” in determining that Oklahoma’s ban on same-sex marriage is unconstitutional.

“As noted, there was no pre-existing recognized right to same-sex marriage in Oklahoma,” Holmes writes. “In other words, there was no predicate right to same-sex marriage to support the Perry deprivation scenario. Thus, my examination of Perry underscores the absence here of the sort of qualitatively abnormal lawmaking that customarily triggers the animus doctrine.”

Suzanne Goldberg, director of Columbia University’s Center for Gender & Sexuality Law, said Holmes may be reaching to another court that is considering marriage litigation by writing this concurring opinion.

“A concurring judge goes out of his way to argue, at length, that Oklahoma’s marriage ban does not rest on impermissible animus toward gay people,” Goldberg said. “It seems he might have been trying to influence the Sixth Circuit because lower court rulings on appeal there found that marriage bans reflect unconstitutional hostility toward gay people.”

In his dissent, Kelly writes that same-sex couples satisfy neither standing requirements, nor make a sufficient case based on the merits, for the court to determine Oklahoma’s ban on same-sex marriage is unconstitutional.

“The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults,” Kelly writes. “Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process.”

Being left-handed … black or being gay is just as natural. It is a sometimes rare occurrence to fall in Love and to hold that person in your heart and be loved in return … it is something that should be celebrated! If it’s between two guys or two girls — all the better. It takes even more courage to defend that LOVE!